EA/2023/0448 - [2025] UKFTT 00077 (GRC)

The Commissioner decided that the Trust had cited section 21 FOIA incorrectly in relation to the information requested at part one (terms of reference) and part three (recommendations of the investigation) of the Request as the information that had previously been provided to the Appellant did not match the material that was the subject of the Request. As such, the exemption was not engaged in relation to the information sought in part one and part six of the Request. He did not consider whether the exemption at section 21 FOIA was engaged in relation to the information sought at part two (conclusions of the investigation) of the Request.

The Commissioner decided that the Trust was entitled to rely on section 41 FOIA in relation to part two (conclusions of the investigation) and part six (full redacted copy of the investigation) of the Request. Although the report had been generated by the Trust itself, the content contained witness statements and the conclusions reached were informed by those witness statements.

The Commissioner decided that the information contained within part two and part six of the Request had the necessary quality of confidence as it was more than trivial and was not otherwise accessible. Investigators had made a commitment to those that they spoke to that their personal information would be kept confidential, and the investigation had been conducted under the ‘Freedom to Speak Up: Raising Concerns (whistleblowing) Policy for the NHS which imported a right to confidentiality on all witnesses who participated in the investigation unless they were legally ordered to disclose the information. The Commissioner decided that anyone with a knowledge of the Trust would be likely to be able to identify individuals in the report quite easily if the information were to be disclosed, even if those witnesses were not named in the report.

The Commissioner decided that the Trust was only entitled to rely on section 41 FOIA in relation to one paragraph of the document at part three (recommendations of the investigation) of the Request, as the remainder of the information that was the subject of that part of the Request had not been provided by any other person.

He only considered section 40(2) FOIA in relation to part three of the Request and concluded that the Trust was not entitled to rely on that exemption as the information did not fall within the applicable definition of ‘personal data’ for the purposes of that section.

The Commissioner required the Trust to (i) disclose the ‘terms of reference’ as set out on pages 5-11 of the report and (ii) disclose the ‘recommendations’ as set out on pages 187-190 of the report, with the exception of paragraph 2 on page 187.